Identifying and Advocating Best Practices in the Criminal Justice System. A Texas-Centric Examination of Current Conditions, Reform Initiatives, and Emerging Issues with a Special Emphasis on Capital Punishment.

Thursday, 08 September 2011

How Will FSC Move Forward in Arson Cases

The state's top forensics panel may be getting ready to pull the trigger on the most publicized death penalty examination in its six-year history: the case of Cameron Todd Willingham.

Members of the Texas Forensic Science Commission meet today for the first time since being told that they do not have the authority to scrutinize the state fire marshal's office arson investigation that led to Willingham's 2004 execution.

In a July 29 opinion, Texas Attorney General Greg Abbott said the panel cannot examine forensic testing that predates its September 2005 inception.

Since then, commission members have remained mostly tight-lipped about the future of the Willingham case but haven't called it off. The commission is scheduled to meet beginning at 9:30 a.m. to discuss the effects of Abbott's opinion on the Willingham case and others, its agenda shows.

Fire marshal's officials and others who lauded Abbott's opinion argue that it closes the book on the Willingham case. Fire marshal's investigators had determined years ago that arson caused the 1991 house fire that killed the unemployed Corsicana mechanic's three young daughters. Ed Salazar, general counsel for the state fire marshal, said he told the commission long ago that it lacked the authority to look into the case.

"That was our position from the very beginning, but they just blew us off," he said.

But death penalty opponents and groups working to identify wrongful convictions say errors by the fire marshal's office in determining the cause of the fire must be addressed. They point to testimony by fire experts who told commission members in the past that the cause of the fire should have been ruled "undetermined." They also said the fire marshal's office used outdated methods and erred when determining its cause.

Abbott's opinion left an opening for action: While it prohibits the commission from making determinations on forensic evidence tested or offered in court before the panel's inception, it also states that there is no limitation on the commission's power to investigate any allegation of professional negligence or misconduct.

"We're confident that the commission is still going to look into it," said Stephen Saloom, policy director of the Innocence Project, which filed the Willingham complaint with the commission in 2006.

The Innocence Project is urging the Texas Forensic Science Commission to forge ahead with its investigation of the Cameron Todd Willingham and Ernest Ray Willis arson cases despite a recent ruling from the state’s top lawyer that seemed to limit the panel’s authority.

“As these cases so vividly demonstrate, your investigation is a matter of justice or wrongful convictions; indeed, it is a matter of life or death,” Steven Saloom, policy director at the New-York based organization, wrote in a letter Tuesday to the commission.

The commission is meeting today and Friday for the first time since Gov. Rick Perry appointed Dr. Nizam Peerwani chairman, replacing firebrand prosecutor and Williamson County District Attorney John Bradley. It’s also the first meeting since Attorney General Greg Abbott issued a ruling in July concluding that the panel cannot consider evidence in cases older than 2005. Willingham was convicted of igniting the 1991 blaze that killed his three young daughters. He was executed for the crime in 2004. Willis was convicted based on similar arson investigation techniques and was exonerated in 2004.

The Innocence Project in 2006 asked the Forensic Science Commission to investigate the science used to convict the two men.

And:

It’s unclear what action the commission will take at its meeting, and Peerwani did not respond to a request for comment for this story. But Sam Bassett, an Austin lawyer and past chairman of the commission, said he agreed the commission should complete the investigation. “The commission should take ‘corrective action’ to ensure that those with current or old cases involving arson are not wrongfully imprisoned,” Bassett said in an email. “The science being used in courtrooms throughout the 90’s in Texas has clearly been shown to be invalid in many instances.”

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The StandDown Texas Project

The StandDown Texas Project was organized in 2000 to advocate a moratorium on executions and a state-sponsored review of Texas' application of the death penalty.
To stand down is to go off duty temporarily, especially to review safety procedures.

Steve Hall

Project Director Steve Hall was chief of staff to the Attorney General of Texas from 1983-1991; he was an administrator of the Texas Resource Center from 1993-1995. He has worked for the U.S. Congress and several Texas legislators. Hall is a former journalist.